Experts say too many tears can affect jury

News-Times, The (Danbury, CT), Karen Ali THE NEWS-TIMES

Published 1:00 am, Monday, April 24, 2006

In a courtroom, emotions often run high.

In a murder trial especially, it can be excruciatingly painful for a victim's family to listen to graphic testimony and see gruesome photographs that are put into evidence.
Understandably, tears are often shed.
But, from a legal standpoint, can there be too much sobbing?
Yes, said the judge in the trial of one of the men accused of killing 13-year-old
Maryann Measles
in New Milford in 1997.
During one break in the trial of
Keith Foster
- which began April 4 and is scheduled to resume this week -
Superior Court
Judge
Thomas O'Keefe
gently told Cindi Measles, the victim's mother, that she needed to try to check her emotions.
Superior Court Judge Thomas O'Keefe said he understood why she and other family members were upset. But he explained that loud, constant crying could influence a jury and cause a mistrial.
"I'm telling you what the realities are," O'Keefe said. "This is a tough business."
O'Keefe suggested family members - including Maryann's sister, Jennie - leave the courtroom when the testimony becomes upsetting. Since then, the family has tried to keep its emotions under wraps. At one point, they waited until jurors left the courtroom before breaking down.
A number of legal experts said the judge in the Measles' case made the right call. "It is a very difficult tightrope the judge must walk," said Stamford defense lawyer

Mickey Sherman
, "balancing compassion and fairness for the victim with the defendant's entitlement to a fair trial.
"As offensive and difficult as it might be, a judge may have to burden the victim's family with such an admonition to refrain from grieving in the courtroom," Sherman said.
Marc Klaas knows what it feels like to lose a daughter. He's the father of

Polly Klaas
, a 12-year-old who made national headlines when she was kidnapped from her California home in 1993 while she and friends were having a slumber party.
At the trial of the Polly's killer, Marc Klaas recalls being told the same thing the Measles family was told earlier this month.
"We were told we're not allowed to emote. We're not allowed to make eye contact with the jury," Klaas said. "That's the situation victims find themselves in."
His daughter's killer was sentenced to death.
"You're sitting there hearing about the last few minutes of your loved one's life," Klaas said. "It takes a very stoic individual to get through that without emoting."
Klaas, who has campaigned for victims' rights in the years since the killing, is unhappy with the emotion prohibition. He called on state lawmakers to change state constitutions in Connecticut and elsewhere to give victims' family more rights. Right now, he said, "everything is stacked toward the defendant."
James Papillo
, who is Connecticut's victim advocate, said he has a "centrist" view on the crying in the courtroom issue.
"Obviously, survivors are going to be very emotional," Papillo said. Yet, "it doesn't benefit anyone to have unfair trials."
"The judge has an obligation to make it fair," Papillo said.
Robert Field
, a Danbury defense lawyer and public defender, said the judge was correct in asking family members not express an "obvious outpouring of emotion in front of the jury."
"The idea is for a verdict to be based on facts, not on sympathy," Field said. "Part of the standard charge to the jury in a criminal case is that the jury is not to be influenced by sympathy for any person who might in any way be affected by their decision."
Public Defender Michael Courtney
, who represents
A.J. Walter
, who has already pleaded guilty in the killing, said the fact that a victim's family members cries is not proof of anything.
Yet, he said, the jury is sometimes influenced by it.
"The family has been convinced by the prosecutor that the defendant did it. The jury sees that the family grieves and hates the defendant. (But the crying) could not be less relevant as proof of guilt," Courtney said.
Special
Public Defender Dennis McDonough
, who represents June Bates Seger, one of Foster's alleged accomplices, said most jurors know who the family members are. But he didn't think jurors are overly influenced by a family's emotions.
"I think most jurors, once they hear the case and get the instructions, are very serious when they get to the jury room," McDonough said. "The defense attorney has the obligation to address that issue in closing arguments. You have to remind them that emotion is not what convicts people."
James Diamond
is a former prosecutor who has become a defense attorney. So he sees the issue from both sides.
"It's natural for family members to have emotional reactions during trials," he said. "However, emotional reactions from the public or participants can certainly affect a jury. The jury has to be allowed to concentrate on the evidence. Anything that distracts them from the evidence is unfair to the parties who are counting on their attention."
On the other hand, "some degree of emotion is expected, and the jury might actually question it if a witness or family member lacked emotion under traumatic circumstances," he said.